Lindsey Halligan, the federal prosecutor handling the case against former FBI director James Comey. Photo / Jabin Botsford, The Washington Post
For months, the Trump Administration’s unorthodox strategy to install and retain loyalists in key prosecutorial positions while bypassing Senate approval has rocked courts, drawn legal challenges, and earned condemnation from federal judges.
Now, it threatens to imperil one of the cases United States President Donald Trump cares about the most.
Lawyers for former FBI director James Comey on Tuesday asked a judge to dismiss the case against him, arguing that Trump’s handpicked prosecutor, Lindsey Halligan, was illegally appointed.
Their request bears similarities to other recent challenges that have sought to disqualify Trump’s US Attorney appointees in New Jersey, Nevada, New Mexico, and Los Angeles. Already, federal courts have ruled that two of them are serving unlawfully.
The legal questions surrounding the Administration’s tactics remain far from settled.
And the particularities of Halligan’s appointment and Comey’s prosecution differ enough from the other challenges to complicate any effort to predict how they might affect the case against the former FBI director.
Significantly, no judge has so far concluded that dismissing an indictment is appropriate, even if the US attorney’s appointment is declared void.
“It is not enough to merely assert the US attorney is not validly appointed,” US District Judge David Campbell wrote in an opinion last month disqualifying Trump’s acting US Attorney in Nevada. “Defendants must show that this fact somehow affects the fairness of the proceedings against them.”
Comey argues that Trump, after years of vitriol directed at Comey, installed Halligan, one of his former personal lawyers, as the interim US Attorney for the Eastern District of Virginia with the explicit expectation that she would charge the former FBI director with lying to Congress.
Trump’s previous appointee to the position, Erik Siebert, resigned under pressure following his refusal to move against Comey after concluding that the evidence was insufficient.
Comey’s lawyers contended in their dismissal motion that by replacing Siebert with Halligan, the Trump Administration “flagrantly violated” federal law “to engineer a retaliatory prosecution” against a man who has emerged as one of the President’s most vocal critics.
Typically, US attorneys, who wield broad prosecutorial discretion to pursue civil and criminal matters in their districts, are nominated by the president and confirmed or rejected in a Senate vote.
Trump has faced pushback on Capitol Hill to some of his more controversial nominees, prompting the Justice Department to deploy novel tactics to keep his picks in their jobs.
The Administration’s strategy relies on two separate laws that govern who can temporarily fill vacant US attorney positions when there is no permanent, Senate-confirmed replacement.
Under one statute - the law under which Halligan was appointed - the attorney-general may name an “interim” US attorney to serve for a period of 120 days.
After that point, if there is still no Senate-confirmed replacement, the judges in each federal court district may appoint their own candidate.
Comey’s lawyers argue that because the Trump Administration used that law to install Siebert - who was named interim US Attorney in January, served a full 120-day term and was later reappointed to his position by judges - Administration officials can’t use it again to name Siebert’s replacement.
The law does not allow the Justice Department to make successive 120-day interim appointments, they argue, because if the Administration could do so, there would be no reason to seek Senate confirmation.
The Justice Department maintains that it does have that authority. However, a federal judge had rejected the Administration’s position a month before Halligan’s appointment.
Ruling in August on a challenge to Trump’s US Attorney pick for New Jersey, Alina Habba, US District Judge Matthew Brann concluded that the Government’s reading of the law would allow the president to appoint temporary picks indefinitely - and potentially for an entire term - “without ever seeking the Senate’s advice or consent” for a permanent appointee to the position.
Ultimately, though, Brann’s ruling to disqualify Habba swung on a separate law governing temporary appointments - one that is driving the other pending challenges to Trump’s US attorney picks.
That statute, the Federal Vacancies Reform Act, automatically designates the chief deputy in a US attorney’s office, typically a position held by a career prosecutor, to take over the top job if there is a vacancy and the attorney-general or the courts have not designated an interim appointee.
Habba served a stint as interim US Attorney in New Jersey.
At the end of the 120-day period, the Trump Administration fired her chief deputy and installed Habba in that role.
It argued that because Habba was now the first assistant, and there was no one in the top job, she could effectively remain as US Attorney in an acting capacity.
The Justice Department has followed a similar strategy to retain interim US Attorneys in Nevada, New Mexico, Albany, New York; and Los Angeles.
Brann, in Habba’s case, and Campbell, in his ruling to disqualify Trump’s US Attorney pick in Nevada, Sigal Chattah, rejected that manoeuvring as unlawful.
A three-judge panel of the US Court of Appeals for the 3rd Circuit also appeared sceptical as it heard arguments on Tuesday in an appeal of the Habba case.
“Can you come up with any example in which such a concatenation of events has occurred with respect to the appointment of any other US attorney?” Chief Judge Brooks Smith pressed Henry Whitaker, the Justice Department lawyer arguing the case. Whitaker conceded he could not.
Still, courts have dismissed arguments brought by criminal defendants who maintain that if the US attorney was unlawfully appointed, indictments brought under their authority should be considered invalid - the claim Comey has made.
Brann and Campbell both noted in their rulings that challenged cases brought under Habba’s and Chattah’s watch, had been primarily handled by line prosecutors - non-political staffers of their US attorney’s offices - whose legitimacy was not in question.
The cases could proceed under the oversight of those prosecutors, the judges said.
That reasoning could open an avenue for the case against Comey to proceed, even if Halligan’s appointment is ultimately deemed invalid.
Comey’s lawyers maintain, though, that the prosecution of the former FBI director differs in at least one key respect.
No career prosecutor was involved in securing the indictment against him.
Instead, Halligan, just days into the job, presented the case to the grand jury herself after several prosecutors in her office advised her against doing so.
She was the only official in her office to sign the indictment.
Until two line prosecutors from the US attorneys office in North Carolina joined her prosecution team last week, no career lawyers had signed on to the Comey case.
A spokesperson for the Justice Department declined to address Comey’s arguments this week. Its lawyers have until November 3 to file their response in court.
“Mr Comey was charged only because Ms Halligan was unlawfully appointed and then personally secured and signed the indictment acting alone,” Comey’s lawyers wrote in their court filings.
“A dismissal with prejudice is the only remedy.”
Sign up to Herald Premium Editor’s Picks, delivered straight to your inbox every Friday. Editor-in-Chief Murray Kirkness picks the week’s best features, interviews and investigations. Sign up for Herald Premium here.